The Legal Case for Cutting U.S. Funding for the United Nations

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536 September 26, 1986 THE LEGAL CASE FOR'CUTTING US. FUNDING FOR
THE UNITED NATIONS INTRODUCTION The United States at last has found
a way to get the United Nations' attention: Congress is threatening
to cut as much as 148 million from the U.S. contribution to that
organization. The reason for the congressional hardline is the
U.N.Is well-documented record of irresponsibility. The
congressional message is clear: Unless the U.N. reforms
substantially, it can expect only decreasing levels of U.S support.

The problems plaguing the U.N. have not emerged suddenly A quarter
century ago, Benjamin Cohen, a distinguished legal scholar and
delegate to the 1944 Dumbarton Oaks Conference, wh ich laid the
groundwork for the United Nations, warned Small and relatively weak
states may influence the action of the more powerful states, but
they cannot use their voting strength in the General Assembly to
dictate.

The irresponsible exercise of votin g power by the small and
relatively weak states may.threaten the future of the United
Nations quite as much as the irresponsible exercise of the veto or
the irresponsible withholding of contributions by the Great Powers
1. Benjamin Cohen, The Un ited Nati ons: Const itutional
Develooments. Growth and Possibilitieg (Cambridge, Massachusetts:
Harvard University Press, 196 I), p. 94.

I Indeed, it has been the more than 100 Ilsmall and relatively weak
states," represented by the so-called Nonaligned Movement, w hich
over the past fifteen years have used their overwhelming numerical
majority in the General Assembly to exercise near-total control
over the U.N.Is agenda, deliberations, and resolutions. They have
made the U.N. the willing servant of a radical Third World
ideology, which is obliquely pro-Soviet in its political views,
emphatically redistributionist in its economic views, and
profoundly hostile to the liberal democratic values of the U.N.
founders.

Perhaps the most revealing example of the U.N. majority's
Iirresponsible exercise of voting powerll is in budgetary matters.
The nonaligned nations, many of whom pay only 0.01 percent of the
U.N budget, use their voting strength to approve ever expanding U.N
budgets and ever more programs, committees, and conferences, which
generally accomplish very little and thus seriously damage the
U.N.Is reputation approximately 4 billion spent by the U.N. bodies,
the U.S. provides about 1.1 billion-some 25 percent.

U .N. budgetary growth. Yet U.S. concerns, shared by other major
donors, have been largely ignored series of laws reducing U.S.
contributions to the U.N predictably is being criticized by those
who are determined to maintain the status quo at the U.N. They a
ccuse the U.S., for example, of precipitating a Ilfinancial
crisisll at the U.N., even though other nations, chiefly the Soviet
Union, have withheld larger sums from the U.N. and U.N. officials
admit that there is ample scope for saving money and rational i
zing U.N. activities. Reflexive U.N. backers, such as Elliott
Richardson, Chairman of the United Nations Association of the U.S.,
also complain that Congress has no right unilaterally to reduce
U.S. contributions to the U.N .and that so doing would Vhrow o ur
legal commitments to the winds.Ili Such criticisms stand on shaky
legal grounds. There is serious doubt whether the U.S., as a
signatory of the U.N. Charter, is obliged to contribute whatever
amount is llassessedll by the General Assembly--particularly as
these assessments have been ignored by other countries in the past,
which constitutes what jurists call a Itmaterial breach" of the
Charter that changes the nature of the U.S. I obligations. It is
also unclear whether a strictly legal perspective is fu l ly
compellhg, given the highly political process of financing the U.N.
and that many U.N. activities are financed by voluntary The Unitea
States is the U.N.Is biggest financial backer. Of the Washington
continually protests In response to U.N. profligacy, the U.S.
Congress has enacted a This action 5 I I 2. E. L. Richardson and
Skirting the Law," Op-Ed, The Washinnton Post, May 20 1986 2
contributions. These considerations have been ignored by those
condemning the actions of the U.S. Congress.

In the legal and historical context of U.S. membership in the U.N.,
the U.S. has a right to reduce its enormous financial contribution
to the organization. In mandating such a reduction, not only is
Congress making legally allowed policy, it is making sound policy.

U S WITHHOLDINGS Every two years, the U.N. and its specialized
agencies adopt budgets, which are largely financed by levying fixed
assessments on all U.N. members: The budget of the U.N. in New York
is roughly $1.68 billion for 198601987, of which the Unit e d
States is assessed 25 percent, or $420 million. The budgets of U.N.
agencies operating elsewhere total about $7 billion over two
years,'of which the U.S also contributes in the aggregate 25
percent. The assessed contribution is supplemented by large vol
untary contributions from the U.S. to U.N. economic development and
humanitarian affairs programs such as UNICEF and the United Nations
Development Program.

Recently enacted U.S. laws affecting U.S. withholding from the
assessed contribution are those that 1) withhold money to protest
specific U.N. activities 2) withhold money as part of a U.S.
federal deficit reduction effort: and 3) mandate across-the-board
withholdings unless the U.N. changes its budget process and shows
greater fiscal responsibility.

The first type of withholding involves reductions based on the
principle that certain U.N. activities are what legal scholars
call.

Example: the U.S. for years has reduced its assessed contribution
by the amount the U.N. spends in support of the.Palestine
Liberation Organization. ultra vires, or outside the authority, of
proper U.N. actions.

The second type is intended to help the federal government qomply
with the deficit ceilings set by the Gramm-Rudman-Hollings legisla
tion. Such cuts are only indirectl y aimed at the U.N. and have
been applied selectively; some U.N. agencies have been reduced more
than others.

The third type is the most significant, involving not only large
reductions in U.S. contributions, but also making resumption of
that full paymen t contingent on concrete changes in U.N. practice.
The Kassebaum-Solomon Amendment of'1985 introduced by Kansas
Republican Senator Nancy Kassebaum and' New York Republican
Congressman Gerald Solomon, states that "No payment may be made for
an assessed con t ribution to the United Nations or its specialized
agencies in 3excess of 20 percent of the total annual budget of the
United Nations or its. specialized agencies (respectively) for the
United States Fiscal Year 1987 and following years" unless the U.N.
gr a nts voting rights llproportionate to the contribution of each
such member state to the budget of the United Nations ang its
specialized agenciest1 on Ilmatters of budgetary consequence.Il
Stated simply, this means that if.the U.S. pays 25 percent of the U
.N. budget, it should have proportionate say (perhaps as much as 25
percent) on budgetary matters. Currently, every U.N. member casts
one vote, except the Soviet Union which casts three.

The'U.N. has not implemented the proportionate voting required by
the Kassebaum-Solomon Amendment. Until it does so, Congress,will
withhold $79 million from its assessed contribution.

The legislative record of the Amendment makes it clear that its
intent is Into foster greater financial responsibility in
preparation of the budgets of the United Nations and its
specialized agen~ies not to reduce the share paid by the U.S. And
although the Amendment calls for voting rights Itproportionate to
the contribution of each such member state to the budget of the
United Nat'ions,Il M embers of Congress and Reagan Administration
officials have indicated that measures short of the adoption of a
rigid system of weighted voting could satisfy the intent.

Assistant Attorney General Allan Gerson: "The Kassebaum Amendment,
if you read it caref ully, calls for weighted.voting on budgetary
matters. That leaves a lot to be negotiated.lI' It seems, for
example, that Congress could be satisfied by a change in the rules
of procedure of the U.N. Fifth Committee, which deals with the
budget, so that th e Committee would operate by consensus Explained
Deputy Such steps would not necessarily conflict with Article 18 of
the U.N. Charter, which establishes the principle of one-nation,
one-vote in the General Assembly.

Amendment, vitiate the principle of Vhe. sovereign equality of
states on which the U.N. Charter is based, or deprive any member
state of its voice on budgetary issues Nor would the change require
a Charter 3. Section 143, Public Law 99-93 (99 Stat 424 4. Ibid 5.
Ibi'd 6. Statement of Allan Gerso n , Deputy Assistant Attorney
General, at the public hearing Financial Crisis of the United
Nations: International Law and United States Withholding of
Payments from International Organizations", June 12, 1986 I i 4-
U.S I 1 5 I WITHHOLDINGS AND UoSm CONSTI T UTIONAL DOCTRINE I I
Article VI of the U.S. Constitution states that ll...all Treaties
made...under the Authority of the United States, shall be the
supreme Law of the Land." This phrase, known as the Supremacy
Clause, makes international treaty obligatio ns binding under
domestic law. Since the UmN. Charter is consiaered a treaty and was
ratified by ,the Senate, it is the law of the land.

Charter, in this case Article 17(2), which states that "The
,expenses of the Organization shall be borne by the Members,as
apportioned by the General Assembly,Il could be considered a
violation not only of international law, but also of domestic law
Viola t ion of the terms of the Such an interpretation, however,
would be incorrect. It is well-established U.S. constitutional
doctrine, flowing originally common law principles, that
obligations incurred through internati instruments can be affected
by subseque n t domestic law. This was reaffirmed in principle in
the 1957 case of Reid v Covert and in 1973 in Dims v. Shultz from
onal In Reid v. Covert, Justice Hugo Black, writing for the'court
reiterated in the strongest terms that, since international
*treaties a r e coequal with Acts of Congress, subsequent Acts of
Congress may modify or even abrogate preexisting international
obligations. Wrote Black The Court has also repeatedly taken the
position that an Act of Congress, which must comply with the
Constitution i s in full parity with a.treaty, and that when a
statute which is subsequent in time is inconsistent with a treaty
the sgatute to the extent of conflict renders the treaty 7 null
Since the legislation effecting the withholdings is sdsequent in
time to the U .S. accession to the U.N. Charter, that legislation,
of course, has legal precedence over the supposedly conflicting
Article of the Charter.

U.S. courts also have recognized that congressional sovereignty
over U.S. international obligations extends to the U.N. Dims v.
Shultz, a number of prominent citizens sued then Secretary of the
Treasury George Shultz to force Treasury to abide by a U.N.

Security Council resolution embargoing all trade with Southern
Rhodesia, despite the fact that Congress had passed l egislation
that effectively mandated the President to buy strategic minerals
from that country In the case of Ruling on the case, Judge Carl
McGowan of the U.S. Court of 7. Reid v. Covert 354 US '1, L ed. 2d
1146, 77 S Ct. 1222 1957 5-r I I Appeals, Distr i ct of'Columbia
Circuit, strongly upheld the right of Congress to abrogate any
aspect of the treaty obligation resulting from U.S. participation
in the U.N. Wrote McGowan Under our constitutional scheme, Congress
can denounce treaties if it sees fit to do so, and there if nothing
the other branches of government can do about it.

The meaning of the various court rulings: Congressionally mandated
cuts in the U.S. contribution to the U.N. are entirely
constitutional under domestic law.

THE UNITED NATIONS BUDG ET AND INTERNATIONAL LAW I I Member states
have battled since the U.N.ls founding over the Despite this 41
years of proper method of financing the organization discussion and
dispute, it has not been established convincingly that any nation
has an absolut e obligation under international law to pay an
assessed contribution to the United Nations. Article 17(2) of the I
United Nations Charter states that "The expenses of the
Organization shall be borne by the Members as apportioned by the
General Assembly.11 W hile the record makes it clear ghat the
Article was intended as a statement of binding obligation, the
U.N.ls experience during its first fifteen years made it more clear
that#the llobligation'to payt1 assessed contributions wasac, in
fact, almost entirel y theoretical. By 1962, writes Brookings
Institution scholar J. G. Stoessinger, over one-third of the member
states of the United Nations regu'larly defaulted in part or in
full on their assessments most of the Latin American countries,
regarded each Assem bly resolution solely as a recommendation, not
as a legal obhigation. They posed the problem of legal I principle.

Other states, namely the Soviet bloc and Arab countries, have
objected to paying for virtually any U.N. activity in the area of
peace and sec urity, claiming that those llresponsible" for
conflicts 8. Diaes v. Shultz, 470 F. 2d 461 (D.C. Cir. 1972), cert.
denied, 41 1 U.S. 931 (1973 p. 4

66. McGowan also reaffirmed the principle that a subsequent statute
only renders the treaty null "to the ext ent of conflict U.S.
violation of a Security Council resolution therefore, does not
necessitate U.S. withdrawal from the U.N 9. See,'for example, 8
U.N.C.I.O. 487 1945 I 10. J. G. Stoessinger Financing the United
Nations System" (Washington, D.C The Brook i ngs Institution, 1964
p. 110 6should cover the cost. Stoessinger continues explaining and
the Soviet,bloc and the Arab countries, by stressing that the
aggressors must pay,! raised the problem.of legal obligation under
the charter in its starkest .form d1 In 1962, a World Court
decision effectively held that virtually any expense authorized by
the General Assembly was automatically legally binding equivalent
to international law. Indeed, after the opinion was rendered,
countries continued-and continued-to w ithhold contributions to the
U.N The Soviet bloc and France, for instance simply refused to
abide by the Courtls decision as it affected assessments to pay for
two U.N. peacekeeping operations. At one point, in fact 66 states
were in arrears on their cont ributions to these operations,
arrearages that were only partially defrayed by voluntary
contributions from the U.S. and a few other states.

Though Article 19 of the U.N. Charter withdraws from a nation its
right to vote in the General Assembly if it is se riously in
arrears the General Assembly has often refused to apply this
sanction and did not apply it to the Soviet Union or France, even
after the World Court decision. They remain Ildelinquent the Soviet
bloc and France. Former heads of the Nonaligned M o vement Cuba and
India, as well as the current head, Zimbabwe, have withheld parts
of their U.N. contribution; other major nonaligned states that have
withhe1dmoney include Algeria and Syria. China, too, has withheld
funds without being subjected to sancti o ns. In fact, as of March,
twenty member states were in arrears on their U.N. payments because
of withholding contributions is a longstanding and near universal
practice since the founding of the U.N Yet World Court opinions are
not widely accepted as The p ractice of withholding assessments has
not been confined to The reality is that withholding assessed U.N
This is relevant because international law, as distinct from
domestic law, recognizes the concept of #state practice--that the
behavior of states part y to a treaty can affect subsequent
interpretation of the treaty. The repeated violation of a domestic
statute, for example, does not change its character. In
international law, however, where the contracting parties are often
states not subject to a supra n ational authority, the manner.by
which states interpret obligations can and frequently does modify
the original terms of agreement. Writes legal scholar Louis Henkin
The society of nations has no effective law-making body or
process.. General law depends o n consensus: old law 11. Ibid
7cannot survive if enough stases, or a few powerful and influential
ones, reject it I Clearly, "state practice has shown that there is
not even the minimum degree of consensus about financing the U.N.
required to create a cle a r legal obligation. Politically
motivated withholdings of contributions are and will continue to be
commonplace in a near universal organization derogation of a
state's financial responsibilities, it confirms that the legal
obligation to pay is not absolu t e and mandatory under all
circumstances impose Article 19's sanctions on France and the
Soviet Union strengthens this interpretation. This "lack of
sanctions,Il especially in the unusual case where such sanctions
are explicitly authorized and enforceable, supports the view that
the General Assembly itself has validated the right of nations to
withhold contributions It was precisely this lack of sanctions that
led the U.S. to promulgate what is known as the "Goldberg
ReserVation.It1' In a 1965 speech at the U.N., Ambassador Arthur
Goldberg announced, with the approval of Congress, that the U.S.
reserves the right to withhold contributions selectively, since
other nations have been doing so without suffering sanctions
Although this fact may not justify total S imilarly, the fact that
the General Assembly in 1964 failed to I Said Golaerg to the.U.N if
any member can insist on making an exception to the principle of
collective financial responsibility with respect to certain
activities of the organization, the Un i ted States reserves the
same option to make exceptions to the principles of collective
financial responsibility if, in our view, strong and compelling
reasons exist for doing so. There can be no double standard among
the members of the organization Even t h e Vienna Convention on the
Law of Treaties, the 1969 Treaty establishing the nature and
boundaries of treaty obligations defines circkstances whereby
%aterial breach" of a treaty obligation may be invoked by a nation
to justify its.own decision not to ful f ill some obligation. Thus
when a number of member states over a number of 12. L. J. Henkin Is
it Law or Politics" in C. W. Kegley, Jr. and E. R. Wittkopf, eds
The Global APenda: Issues and Persnectives (New York Random House,
1984 p. 181 13. For discussio n of the legal basis of the
Reservation, see- the statement of Allan Genson; gn. cit 14.
"United States Participation in the United Nations," Report by the
President [Lyndon B. Johnson] to Congress, 1965, p. 108. r 8years
withheld.their contributions to.th e U.N., they %aterially
breached" their obligation to the organization. Under general legal
practice, this is a fundamental breach, which Inradically changes
the position of every party.Il" The meaning: As stated in the
Goldberg Reservation, the breach by o ther states gives the U.S.
the reciprocal right to withhold if Instrong and compelling reasons
exist for doing so I The changed nature of the financial obligation
to the U.N. has been recognized by legal scholars as well. Jorge
Castaneda, a Mexican diplom a t and legal scholar, summarizing the
1962 World Court decision states that Inone can justly ask whether
the Assembly still supports in fact, the thesis of mandatory
apportionment of expenses originating in recommendations.Igl6
Thomas Franck, a professor a t New York University and former U.N.
official, has likewise argued that Although the International Court
in 1962 opined that there was a legal obligation to pay, the norm
fell into desuetude once the Assembly refused to discipIine the
defaulting Soviets I t may fairly be concluded that the theoretical
'oblic&ation to pay' died on the floor of the Assembly in 1965.

Although Franck views some specific U.S. withholdings as
unjustifiable, he clearly recognizes that the nature of a
multilateral obligation may be changed through contrary state
practice I VOTING POWER AND FINANCIAL RESPONSIBILITY The
Kassebaum-Solomon Amendment and similar congressional acts which
effect the largest part of U.S. funding reductions, are intended to
eliminate a basic structural disj unction within the Organization.

By calling for some form of weighted voting.on budgetary matters,
they attempt to alter the peculiar situation at the U.N., by which
nations that pay the bills lack the votes to set budget levels,
while those that have the votes to set the levels do not pay the
bills 1 Currently, the contributions of just fifteen of the U.N.ls
159 members-the U.S., the USSR, Japan, and the twelve
European,Community 15. Articles 60(2) and 60(3 Vienna Convention on
the Law of Treaties 16 J. G . Castaneda, LeEal Effects of United
Nations Resolutions (New York and London:.

Columbia University Press, 1969 p. 48 17. T. M. Franck, National
Avainst Nation: What HaDDened to the U.N. Dream and'What the U.S.
Can Do.About It New York: Oxford University P ress, 1985 p. 289
9nations-account for close to 80 percent of the U.N budget.
contrast,,80 countries, a majority in the General Assembly,
together contribute less than 1 percent of the budget. The Insmall
and relatively weak states," therefore, have no in c entive to
economize and thus authorize virtually any expenditure they deem
suitable consequences for the U.N was recognized by the earliest
U.N scholars. Perhaps the most eloquent elaboration of this appears
in the very 1962 World Court decision that is s o frequently cited
as evidence that all nations are obliged automatically to pay all
U.N assessments By I I The fact that such a situation could
develop, with damaging In a separate concurring opinion, Judge Sir
Gerald Fitzmaurice of i Great Britain explai n ed that, since so
many essential U.N. activities I are funded voluntarily and since
there is no conceptual division between activities financed
Woluntarily" and those financed by assessments, the reality
envisaged under Article 1?(2)--fair sharing of all e xpenses-is
vitiated More important, perhaps, Fitzmaurice argued that a U.N.
expense is not necessarily legitimate simply'because the General
Assembly authorizes it. If this were the case, he reasoned, a
potentially dangerous situation could arise I for if the Assembly
had the power automatically to validate any expenditure this would
mean that, merely by almost anything, even something wholly outside
its functigns, or maybe those of the Organization as a whole
deciding to spend money the Assembly could, in practice, do He
added, in a point very relevant to Congress mandating a reduction
in U.S. donations to the U.N that: it would follow that, in theory
at..least, the Assembly could vote enormous expenditures, and
thereby place a heavy financial burden even on dissenting States,
and as a matter of obligation even in the case of non-essential
activities.

Fitzmaurice's .analysis of this issue and his qualms about
interpreting all assessments-as lvlegitimatelv and legally binding
were I prescient. From 1972 to 1 982, the U.N regular Ilassessed"
budget I 18 Certain Expenses of the United Nations (Article 71,
Paragraph 2 of the Charter Advisory Opinion, 1.C.J Reports, 1962,
p. 201 19. Ibid, p. 214 10 increased by over 700 percent-from
roughly $220 million to $1.5 b i llion: the smaller states
mandating these increases also tacked on over $172 million in
budget Iladd-onsll between 1983 and 1986 alone-including the
notorious $73 million for'a U.N. Ilconference center" in Ethiopia,
approved last year as the nation was re e ling from a devastating
famine growth. In 1974, to take one example, the U.S. Wigorously
opposed112o a series of large-scale salary increases for U. N.
officials to no effect; by 1981, the U.S. representative in the
Fifth Committee was protesting "imprope r expensest1 in the U.N.
budget and stating that "We will...neither condone nor excuse
waste, excess, and disregard for the mounting financial burdens
imposed upon the taxpayers of the world by self-serving public
institutions. IrZ1 This harsh analysis of t he U.N. budget process
is shared by other member states. Since 1979, those contributors
accounting for close to 80 percent of the U.N. budget have either
abstained or voted against it, while in 1985 both the U.S. and the
USSR voted against the budget reso l ution requiring the U.N. to
make a serious effort to put its affairs in order and staunch its
profligacy decade-long budgetary spree, U.S. withholdings are not
only legitimate but necessary steps if the U.N. is going, in the
words of the London Economist, llto avert the real threat to its
existence--obesity.l The U.S. consistently opposed such
unrestricted budgetary The Kassebaum-Solomon Amendment is an
appropriate means of In the context of the U.N.Is CONCLUSION The
41st regular session of the United Nati o ns General Assembly
convened last week. At this session, the U.S can expect to be
accused of violating international law because it is withholding
some of its contributions: the U.S. may even hear that it is
attempting to sabotage the U.N. It makes no dif ference that, even
with all the cuts in contributions proposed by Congress, the U.S.
still would be giving hundreds of millions of dollars to the U.N
forcefully.

At the U.N., the U.S. delegation should rebut these charges The
U.S. should point to the long history of U.N. members 20 United
States Participation in 'the United Nations," Report of the
President [Gerald Ford to Congress, 1974, p. 415 21 United States
Participation in the United Nations," Report of the President
[Ronald Reagan] to Congress, 1981 , p 342 11 I I I withholding
their contributions and to the fact that the entire potential U.N.
deficit would disappear if the Soviet Union fully paid its
arrearages.

There is more than adequate precedent to make the case thatthere is
no absolute legal obligation to pay U.N. assessments. The U.S. can
base its argument on solid principle; it need not plead that it is
withholding funds because of congressional concern ab out the U.S
budget deficit. Nor should the U.S. invoke its domestic law as a
defense of the withholdings.

The3J.S. delegation,should insist repeatedly that the U.N
withholding and fiscal problems never would have arisen if the U.N
had paid attention to leg itimate U.S. complaints about the runaway
U.N. budgets. As such, the U.S. should push for the speedy
execution of fundamental U.N. structural reforms-the only real
solution to the U.N.s financial crisis For overfour decades, the
U.S. has given itsmora1, p olitical and financial support to the
U.N. with virtually no questions asked.

During each past crisis, it was the U.S. and its Western allies
that contributed the effort and, often, the money to enable the
U.N. to survive, just as it is these countries tha t have created
and sustained mostof the U.N.s voluntary programs. The question to
be answered at the 41st General Assembly is whether the nations of
the Nonaligned Movement have similar respect and affection for the
organization they now control organizat ion in a way that will
allow the.U.S to resume its full contributions to the U.N If they
do;they will take the steps to reform the Thomas E. L. Dewey Policy
Analyst 12